A Brief Look at Osgoode’s 2015 Constitutional Cases Conference

Osgoode’s Constitutional Cases Conference is the leading constitutional law conference in Canada and a much anticipated annual event. The Conference, now in its 19th year, brings together constitutional law experts and practitioners for insightful analysis of the past year’s Supreme Court of Canada (“SCC”) constitutional judgments.

There were a few novelties to this year’s event that made it even more unique. First, the Conference took place on the Osgoode Hall Law School campus, a symbolic but important shift. The new venue gives an opportunity for students to engage with scholars and re-affirms Osgoode’s role as a catalyst for important legal debate.

Second, in addition to panels that dealt with the many constitutional themes of 2015, this year included a forward looking panel on electoral reform. Electoral reform is a topical subject but one that has received little legal analysis. Reform of the electoral system has the potential to significantly alter one of the main governing institutions of our country. However, legal scholars are divided on whether such reform would engage the Constitution by requiring amendments with provincial consent.

Third, the Conference made possible the first visit by Justice Richard Wagner to the Osgoode Hall Law School campus. Justice Wagner spoke candidly about worries around judicial activism and the importance of engagement between courts and the public.

2015 Constitutional Case by the Numbers

Osgoode’s Dean, Lorne Sossin, opened the Conference by providing a review of the 2015 constitutional jurisprudence. Dean Sossin pointed out that 2015 saw an increase in SCC cases that engaged with the Constitution. Out of the 68 judgments from the SCC in 2015, 28 (32%) of them were constitutional law decisions. This is a significant increase from 24% in 2014 and 15% in 2013. Dean Sossin’s analysis showed that the focal points of the 2015 SCC constitutional judgments were s. 2 and s. 7 of the Charter and pointed to a decrease in s. 15 and aboriginal rights cases.

Additionally, Dean Sossin made note of the fact that a significant number of 2015 cases saw an increase in number of interveners. The highest numbers of interveners occurred in Saskatchewan Federation of Labour v Saskatchewan, [2015] 1 SCR 245 with 35 (for a review of this case, see here). Second was Carter v Canada, [2015] 1 SCR 331 [Carter] with 26 interveners (for in depth case comment, see here, and for the many Carter-related case comments, see here). In third place was Loyola High School v Quebec, [2015] 1 SCR 613 with 17 interveners (for case comments, see here and here). As well, of some interest is the fact that the federal government was an intervener in 50% of the 2015 cases for which it was not already a party. The number of interveners speaks to an increase in engagement between the public, government institutions and the SCC, a theme that was also picked up by Justice Wagner.

Further, Dean Sossin noted that 2015 marked the end of the “Harper decade” which bears witness to an increased interaction between the federal government and the SCC. The SCC vision of the law, however, did not necessarily align with the Harper government’s justice agenda. This is particularly striking as former Prime Minister Harper appointed seven out of the nine justices sitting on the SCC bench. This divergence re-confirms the fact that the SCC is not prone to the same political and ideological influences that are symptomatic of Supreme Court appointees in the United States.

The retirement of Justice Rothstein was also one of the 2015 highlights mentioned. Dean Sossin pointed to Justice Rothstein’s commitment to deference to Parliament and democratic principles and his minimalist approach to the development of doctrines that stray from the Constitution as his defining commitments and legacy.

Justice Wagner on Engagement

The main highlight of the Conference was Justice Wagner’s keynote address, which had as a theme the challenges of quelling fears around judicial activism and how courts can best engage the public. The progression of jurisprudence, the Constitution and our society’s advancement have meant that the SCC has had to increasingly deal with issues in the traditional domain of legislatures. Courts have had to increasingly grapple with public policies and morality issues and this trajectory has proven to be a tremendous responsibility. However, Justice Wagner spoke of the importance of not allowing the mechanical application of the law to prove regressive to social progress and the need for judges to find ways to give old laws new life.

Justice Wagner singled out the SCC striking down of mandatory minimum sentences as one of the areas where the SCC has had to venture in the traditional domain of legislatures. This past year, the SCC struck down a mandatory minimum sentence in relation to firearm offences in R v Nur, [2015] 1 SCR 773 (for a detailed case comment, see here). Based on the keynote, we can expect an interesting judgment regarding the mandatory minimum sentence associated with s. 5(3)(a)(i)(D) of theControlled Drugs and Substances Act, SC 1996, c 19 at issue in Joseph Ryan Lloyd v Her Majesty The Queen, which is to be released on April 15, 2016 (for the case comment from the lower court judgment, see here).

Justice Wagner praised the unique and moderate approach which the Canadian legal system has developed. However, he cautioned against taking our society’s stability for granted. As a strong advocate of dialogue between the public and judiciary, Justice Wagner underlined the importance of preserving the public’s confidence in the judicial system. The confidence Justice Wagner spoke of requires transparency. Even though SCC justices have no control over their own appointment process, they do have control over how they engage with the public once appointed. This engagement can take many forms, but needs to start with the language used in written judgments and can continue with the way media shapes public debate around legal issues.

Justice Wagner singled out the debate that came out of the Carter decision as a particular point of pride in helping shape public discussion. It was encouraging to hear Justice Wagner acknowledge, that whether we like it or not, media and social media have a role to play in debating important legal issues and how that in turn affects society. Canadians know the law through the nature of how they experience it and for many Canadians that is through the media. Judges need to keep that medium in mind and make decisions more accessible to such analysis. And that was a good note on which to end.